Test Tubes

Written by ESR News Blog Editor Thomas Ahearn

On April 28, 2021, a U.S. district court in California dismissed a lawsuit filed by a former employee – Espindola v. Wismettac Asian Foods, Inc., Case 2: 20-cv-03702 (CD Cal.) – Ab, who alleged disability discrimination after being fired for testing positive for marijuana on a pre-hiring drug test had tested.

Although recreational marijuana use is legal in California, District Judge John W. Holcomb ruled that an employer can make a job offer conditional on passing a pre-hire drug test that includes a marijuana test, and that an employer is not required to sign up engage in an interactive process prior to firing an employee.

In this case, the pre-employment drug test was postponed to the time of the start of employment at the request of the employee who stated that he was not “disabled” and signed a declaration of consent for drug tests stating that he had “chronic back pain”. and was “prescribed” marijuana to treat his condition.

The employee – who did not provide details or documentation about his condition – took the drug test, tested positive for marijuana, and was fired based on the results of the drug test. The former employee filed a retaliation and discrimination lawsuit under the California Fair Employment and Housing Act (FEHA).

Judge Holcomb granted the employer’s request for a summary judgment and ruled that the failed drug test found for the employer was a legitimate and non-discriminatory reason for the employee’s dismissal. He also believed that chronic back pain without further details or documentation should not be considered a disability under FEHA.

Marijuana workforce positive drug tests continued to rise double-digit to keep all workforce positivity rates at historically high levels, according to the 2021 Quest Diagnostics Drug Testing Index ™ analysis, the first large-scale national analysis of drug testing in the workforce during of the coronavirus (Covid19 pandemic.

Based on more than 9 million drug tests in 2020, Quest Diagnostics’ analysis reveals large differences in positivity between states that allow recreational marijuana use with either medical or non-legal marijuana. The post-accident marijuana positivity rate of test results grew faster than the rate of pre-discontinuation tests.

The analysis found that marijuana positivity in states with legal recreational use laws increased 118.2 percent from 2021 to 2020. In states with only medical marijuana statutes, marijuana positivity rose 68.4 percent. In states with no medical or recreational marijuana statutes, marijuana positives rose 57.9 percent.

The marijuana positivity rate in the general US workforce was 3.6 percent in 2020, up 16 percent from 3.1 percent in 2019, and up 44 percent from 2.5 percent in 2016. The positivity rate in the federally prescribed, safety-conscious workforce was 0.79 percent in 2020, a decrease of 10.2 percent compared to 0.88 percent in 2019.

Employment Screening Resources® (ESR) – a leading global background screening provider and named # 1 Screening Company by HRO Today in 2020 – provides legally compliant pre- and post-hire drug testing with access to 10,000+ collection points. To learn more about ESR, visit www.esrcheck.com.

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